Abortion and federalism: the Australian example

This chapter considers processes of legal transplantation that informed the regulation of abortion in the Commonwealth of Australia and the country’s resistance to national uniformity in this area of medical (and criminal) governance that was driven by localized, territorialized politics. Australia is often described as the most centralized of all federations due to its vertical fiscal structures (federal tax collection and distribution) and the relative weakness of local governments. The example of abortion reminds, however, of the power of state sovereignty that was guaranteed in the Australian Constitution to secure a Commonwealth in 1901. To counter this obstructive power, reformist federal governments have progressed the centralization of tax and other fiscal policies since the mid-20th century, including in ways that directly enhanced abortion provision and prompted states to amend their laws and reach a semblance of relative uniformity in recent years. The Australian federation’s entrenching of states’ rights, including their domains of criminal and health law, thereby serves as an illustration to progressive reformers in other federations of the ways around veto points that at times seem unsurpassable. Crucially, it invites scholars of both abortion and federalism to consider important political and policy considerations other than law. These may include the centrality of various governments’ health and welfare schemes and the fiscal incentives and prohibitions that allow progressive politicians to enhance abortion access and conservatives to constrain it without ever advancing anywhere near a courtroom or the legislative drafting table.